Your discovery plan shouldn’t be all about what you’re requesting from the other side—it should also anticipate and prepare for the discovery you expect to receive.

Here are five things to do before discovery requests arrive:

Investigate the facts. Don’t wait until you receive a discovery request to start your fact investigation. At the outset of the case, tailor your initial fact investigation to help you anticipate the opposing party’s discovery needs and any requests it might draft to get that information.

Review the rules on how to respond. Review the content and format requirements for written responses for each form of discovery. Strict compliance will prevent disputes over the form of your responses.

Know the objections you can make. Review the permitted objections for each form of discovery. Consider the appropriate grounds for each objection, e.g.:

Not relevant to the subject matter of the action and neither admissible nor likely to lead to the discovery of admissible evidence (CCP §2017.010);

Protected by the constitutional right to privacy (Cal Const art I, §1).

Plan your objection strategy. You should avoid weak objections such as: “the request is vague and ambiguous” or “a party is using discovery to cause unwarranted annoyance, embarrassment, or undue burden and expense” (CCP §2023.010(c)), when the information requested is in fact relevant.

Consider when you’ll fight and when you’ll fold. Anticipate discovery with an overall strategy in mind that will best position your client’s case. You’ll need to distinguish between the essential, the important, and the relatively unimportant; don’t spend a lot of time arguing over unimportant issues, and focus your energy on the evidence that does matter. Although you may discover, interpret, evaluate, and sometimes reframe facts to advance your client’s interests, but you may never create or misstate them. This means that, in every case, you’ll be required to disclose potentially harmful information. Prepare to make such disclosures and understand that it’s part of the discovery process.

It’s worth reviewing these in every case and sharing them with new attorneys. For more step-by-step guidance on discovery planning, turn to CEB’s Creating Your Discovery Plan (Action Guide). And for the rules and strategies for responding to each form of discovery, check out CEB’s California Civil Discovery Practice.

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